"It will remain one of democracy's best jokes that it provided its deadly enemies with the means by which it was destroyed." - Joseph Goebbels

* * *

Gradually, as the veil of secrecy lifts, a growing number of Americans are beginning to comprehend the lawlessness of the cabal which seized control of the White House in 2000 in what amounted to a judicially-aided coup d'etat.[i] This lawlessness extended across the board. It included the packing of federal agencies with lobbyists from industries they were designed to regulate, deception to take this nation into a war of choice, fraudulent no-bid contracts, torture, extraordinary rendition, warrantless NSA eavesdropping on the entire stream of domestic electronic communications, and, if Seymour Hersh's recent allegations are accurate, the creation of a highly secretive "executive assassination ring" which reported only to Dick Cheney's office and which had "been going into countries, not talking to the ambassador or the CIA station chief, and finding people and executing them and leaving."[ii]

The reaction of leading Democratic politicians to these unprecedented high crimes has been ambivalent, at best. Even before she assumed the role of Speaker, Nancy Pelosi announced that impeachment was "off-the-table," thereby enabling two more years of executive lawlessness, not to mention the nation's economic demise. Pelosi evaded so much as mentioning their high crimes until February 2009. President Obama acknowledged that "no one is above the law," but added that the focus of his administration is to look forward, not back.

There are fundamental deficiencies in the President's formulation. First, it is impossible to observe the rule of law without looking back. It would make no sense, for example, for a man charged with armed robbery to come before a judge and say, "Well, the robbery was in the past. You've got to look forward. I have every intention of abiding by the law in the future. So why prosecute me?" Second, looking forward does not mean handling current events at the expense of the rule of law. The point is to look far enough into the future to appreciate that the same people who brought us the last eight years of executive lawlessness could one day return to power...

* * *

As noted by Scott Horton, citing remarks by "Professor Manfred Nowak, the United Nations Rapporteur responsible for torture," existing treaties, which the president is obligated to enforce, mandate the commencement of "an investigation of Bush's torture practices." Law Professor Jonathan Turley, who concurs, notes that in calling for foreign prosecutions while protecting our own, "the U.S. is seen as a nation of hypocrites."

Undoubtedly, both the Speaker and the President, a magna cum laude graduate of Harvard Law School, are well aware of our treaty obligations. They know that neither those obligations nor the rule of law can be satisfied by Senator Leahy's proposed "truth commission." So why do they not insist on criminal investigations and, where factually warranted, prosecutions?

Setting aside the exigencies of having to clean up the disasters the cabal left them, I believe the principle reason stems from a failure to comprehend the true nature of the American hard-right --- a billionaire-funded, well-organized group of anti-egalitarian ideologues. It is a "revolutionary power"[iii] whose agenda is aimed at nothing less than smashing the framework of the American constitutional order. Any doubts as to their radically subversive aims ended with the recent release of a series of Justice Department memos...

* * *

In a 10/23/01 memo [PDF], John Yoo concluded that, in the wake of 9/11, the president could deploy the military inside the U.S. and ignore all constitutional safeguards of individual liberty, including those provided by the 1st and 4th Amendments.

A 6/27/02 Yoo memo [PDF] asserted the president had the unchecked power to declare American citizens "enemy combatants" who could then be placed in "preventative detention" indefinitely without any right to challenge their detention in court.

These memos flow from the "Unitary Executive" theory first enunciated in 1986 by Samuel Alito when he was an attorney in the Reagan Justice Department. It is a theory that is not merely radical but subversive to the rule of law. It postulates that, despite a president's solemn oath to enforce the law, a president is free to disregard any provision of the law which the president perceives to interfere with his executive powers. Under "Unitary Executive" theory, a president is not simply above the law. The president is the law.

As revealed by Jane Mayer in a New Yorker piece entitled "The Hidden Power," it was a spin-off of this radical theory --- dubbed "the new paradigm" by Cheney's chief of staff, David Addington --- which formed the quasi-legal basis for the nearly 1,200 presidential signing statements, torture, military tribunals that were straight out of Kafka and warrantless NSA eavesdropping on Americans. The Mayer article reveals that Addington knew torture, often applied to innocent men, was ineffective, but he didn't care. A Bush administration lawyer, quoted by Mayer, said: "Torture isn't important to Addington as a scientific matter, good or bad, or whether it works or not. It's about his philosophy of Presidential power. He thinks that if the President wants torture he should get torture. He always argued for 'maximum flexibility.'"

Commenting on the scope of the Justice Department memos, attorney Scott Horton observed that John Yoo, the principal author of the memos, had "concluded that in wartime, the president was freed from the constraints of the Bill of Rights with respect to anything he chose to label as a counterterrorism operation inside the United States…We may not have realized it at the time, but for the period from late 2001-January 19, 2009, this country was a dictatorship."

Horton overstated his case. While the aim was dictatorship, several factors prevented its fruition: Alternative media countered the propaganda that flowed from the right-wing echo chamber; hardworking bloggers like Brad Friedman exposed how easy it was to manipulate E-voting, and a slender Supreme Court majority in Hamdan (2006) slammed the administration's effort to utilize an endless "global war on terror"[iv] as justification for unlimited presidential power. The court found the military tribunals to be at odds with Common Article III of the Geneva Conventions. In his concurring opinion, Justice Kennedy fired a shot across the bow of the U.S.S. "Unitary Executive," noting that violations of Common Article III were war crimes within the meaning of the U.S. War Crimes statute...

* * *

The loss of democracy was averted, but only because a right-wing project to remake the federal judiciary had not been completed. It is a project in which, following the Senate's 1987 rejection of Robert Bork, whose subversive views were well known, future nominees affiliated with Bork's Federalist Society secured confirmation by evading hard questions designed to expose their radical legal theories. Although seven of the nine Justices are Republican appointees, only four are connected to the Federalist Society. All four are what Law Professor Cass Sunstein refers to as "radicals-in-robes." The Federalist Society is committed to all of the hard-right agenda, especially Unitary Executive theory.

Thanks to a bottling up of Clinton nominees in committee, the judicial project enjoyed greater success in the intermediate appellate courts where, by the end of 2005, approximately 60% of federal appellate judges were Republican appointees. This was followed in 2006 by a Republican threat to end the right of a filibuster in order to secure the appointment of Bush's most radical nominees.

The danger to democracy and the rule of law remains. While the 2008 election placed Democrats in control of the executive and legislative branches, the right-wing judicial project continues with the circulation of a new Senate Republican letter which not only threatened to filibuster Obama's appointees but suggested that "Obama begin by appointing holdover Bush nominees who were never confirmed by the Senate."

Other set-backs --- Nixon's forced resignation; Iran-Contra convictions --- were followed by Ford's pardon of Nixon and G.H.W. Bush's pardoning of his Iran-Contra co-conspirators. These pardons set a dangerous precedent-impunity-which emboldened the hard-right to return with a vengeance during the Bush/Cheney reign.

Unless the rule of law is restored and applied to the Bush/Cheney cabal, the next time around our constitutional democracy could be lost, forever. The survival of the republic mandates nothing less than criminal investigations and prosecutions not only of war crimes and financial crimes but "crimes against democracy," an apt phrase that should be applied to voter suppression, illegal manipulation of election results and the attempted misuse of the Justice Department to gain partisan advantage.

Note: For those so inclined, they can petition Attorney General Eric Holder to appoint a special prosecutor right here.

UPDATE 3/29/08: A 98-page complaint has been filed by Spanish prosecutors with Baltasar Garzón, the judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. As reported by the New York Times today, the complaint is based on the Geneva Conventions and the 1984 Convention Against Torture. "The move represents a step toward ascertaining the legal accountability of top Bush administration for allegations of torture…" A Spanish "official said that it was 'highly probable' that the case could lead to arrest warrants." The complaint specifically targets Alberto Gonzalez, Douglas J. Feith, John C. Yoo, Jay S. Bibee, David S. Addington and William J. Haynes II.

It is nothing short of shameful that a Spanish court has to step forward to carry out a task that our own Justice Department should be pursuing.

[i] The Bush 537-vote "victory" in Florida was the product of an illegal purge of some 90,000 mostly Democratic and mostly African-American voters from Florida 's computerized eligible voter rolls (see, e.g., Greg Palast, Armed Madhouse (2006)). It was facilitated by the "Brooks-Brothers riot" which appeared as a spontaneous protest because the corporate media failed to disclose that the angry men in white shirts and ties who stormed the Miami-Dade Canvassing Board to shut down a court-ordered recount were comprised of staffers from the offices of Republican Congressmen Tom DeLay and Tom Sweeney, along with the future U.S. Ambassador to the United Nations, John Bolton. It was sealed by a questionable U.S. Supreme Court decision . It is statistically probable it was also occasioned by the illegal manipulation of the count on both touch-screen DREs and the memory cards used in optical scanners. Per Steven Freeman, Ph.D. & Joel Bleifuss in Was the 2004 Election Stolen? Exit-polls* predicted that Gore won Florida by 7.8% --- a margin of some 435,000 votes.
* Exit-polls have proven accurate in thousands of elections. They are so reliable that the U.S. government utilizes them to measure the fairness of foreign elections. Yet there have been six occasions in which there have been marked discrepancies between exit-polls and the official count in US presidential elections. "In each," per Freeman & Bleifuss, "the official count benefited the mainstream Republican candidate…, and…in five out of the six elections, the candidate whose official numbers far exceeded exit-poll results was named George Bush."

[iii] The term "revolutionary power" comes from Henry Kissinger's 1957 doctoral thesis, A World Restored. It was applied to the Bush cabal by Paul Krugman in The Great Unraveling (2004). Its applicability was underscored when, during the 2000 election, every Republican member of Congress was given a Karl Rove-inscribed copy of David Horowitz's Art of Political War. The book instructs its readers to follow Lenin's injunction: "In political conflicts, the goal is not to refute your opponent's argument, but to wipe him from the face of the earth." See, Sheldon Rampton & John Stauber, Banana Republicans (2004).

[iv] As observed by retired General William Odom, the idea of conducting a war on terror is nonsensical. "Terrorism is not an enemy. It cannot be defeated. It's a tactic. It's about as sensible to say we declare war on night attacks and expect we're going to win that war." The real utility of a "global war on terror" is that it is a war without end; a justification for a permanent change toward dictatorial presidential power.

===

Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers' compensation at both the trial and appellate levels. He graduated from Southwestern University School of Law where he served as a student director of the clinical studies department and authored a Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He's also a Vietnam vet (4th infantry, Central Highlands 1968).

Well stated, and I fully agree. Several years ago, after reading the full text of Mussolini's encyclopedia article, "What is Fascism," I came to the conclusion that Bush and Cheney were authentic Fascists (we used to throw that term around much too lightly in the Sixties). I found this link to a BBC radio report about Bushole's grandfather, Sen. Prescott Bush, who committed treason in the Sixties during the attempted 1933 coup against Roosevelt (but he was never prosecuted). The Bush family's ties to fascism are clear and indisputable.http://www.bbc.co.uk/rad.../document_20070723.shtml
Be sure to listen to the whole report.
Now, I read that back in October, the War Crimes Tribunal at the Hague sealed six indictments of war crimes against Bush, with expected further indictments against Cheney and Rumsfeld. These were supposed to be unsealed after Bush left office. Can anybody tell me what became of them? I haven't been able to find anything on a Google search.

You know, Daniel Ellsberg really brings it home in this 65-minute lecture at Google. The beginning is mostly just a rehash for young people of the intricacies of Ellsberg's troubles with the Nixon Administration, but as he goes on he ties it all into what is happening today... states darn clearly that this is not America.

Actually the form of governemtn is a Constitutional REPUBLIC. While the REPUBLIC this country used to have had demcratic elements (e.g. election of president and representatives) it was never a DEMOCRACY.

Such mistakes like this turn off whole segments of your possible audience. They think: If he is so ignorant that he does not know what kind of Government the US constitution create, then why should anything else he write be worth wasting my time to read."

This may well be why you have a hard time convincing Ron Paul Repubilcans (most who would support prosecution) and others in the Libertarina and Constitutional parties.

So, per John Washburn, the U.S. is simply a Republic and not a Democracy!

Per Webster's,

Democracy: 1. A government of the people, esp. rule of the majority. 2. a government in which the supreme power is vested in the people and exercised by them directly or indirectly usu. Involving periodic free elections. 3. A political unit that has a democratic government.

Republic: 1. A government having a chief of state who is not a monarch and who in modern times is usu a president. 2. A political unit (a nation) having such form of government. 3. A government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officials and representatives responsible to them and governing according to law.

I have no problem accepting valid criticism, Mr. Washburn. But yours, I’m afraid, is what is known is law as a distinction without a difference. We are indeed a Republic—a Republic that entails a representative form of democracy. For you to question that the United States is a constitutional democracy is nothing short of startling.

What I was trying to point out is that there is a LARGE audience sympathetic to your position for whom the title, "Constitutional Democracy", will prevent them from any reading further.

To them democracy is in the Athenian sense: the whole population votes directly on legislative matters. Rule by the mob.

To them republic is in the Roman sense: Legislation is voted on by representatives or proxies. Rule of law.

Whether you agree with them or not, they exist and they are sympathetic to your argument. Since this is a distinction of no consequence, if you want them as allies you might want to consider a title which is less offensive to their sensibilities.

If you want you can experiment. Attend an End the Fed rally is two locations. Hand out the above essay (it is excelent BTW) as a flyer where at one location the title is "Constitutional Democracy" and at the other location title is "Constitutional Republic". After the rally examine the streets and garbage cans.

I guarantee you the flyers entitled "Constitutional Republic" will be taken home in significantly greater numbers than the the flyers entitled "Constitutional Democracy".

Now do you have to agree with the politics of the people attending an End the Fed rally? No. Do they have to agree with your political positions? Again, No. But, on this narrow piece of ground: Should Bush be procesuted, you can have an effective alliance. Not a long term alliance, but an effective one none the less. As long as both sides recognize the narrow basis of the alliance, it can be effective.

Maybe you should have two flyers. Use the title, "Constitutional Republic", for the end the Fed, Campaign for Liberty, Ron Paul supporters, Constitional party members, etc. Use the title, "Constitutional Democracy", for the GTO protestors, MoveOn.Org, Huffington Posters, Daily KOSians, etc.

It probably sounds too stark and sixties-ish to just make a title that says "Our Constitution Has Been Flushed And We Must Retrieve It From the Sewer At All Costs"... or "The United States Is a Fascist Rotational Monarchy And We Must Retrieve It From the Sewer At All Costs"... or just "REVIVE THE CONSTITUTION".

Much as we love the Constitution, we ain't a Constitutional Anything right now, boyz.

Beside prosecuting, we have the Military Commissions Act, the PATRIOT Act, and the latest version of FISA to repeal... to name just some of the bigger fish. Extensive and highly unconstitutional damage has been done and I don't think any of it is being addressed. Our government is broken.

With all due respect, Mr. Washburn, you are far too hung up on labels. You have erroneously limited the word "democracy" to "direct democracy," which exists today only when the public votes on ballot initiatives, and "representative democracy" in which the people elect representatives who, ideally, represent their interests in a legislative body.

My article is not part of a political campaign. It is not intended to win over fringe libertarians, who do not understand that the problem is not the power of government per se but the power of corporations, including the power they exert over government, corrupting elected leaders who place the value of the corporate campaign contribution over the needs of their constituents.

My article was intended to be a statement about the essence of the rule of law; a warning about the danger posed to the very survival of our constitutional democracy (republic) that is posed by failing to prosecute high crimes committed by individuals who do not accept the legitimacy of our system and strive to secure power in order to smash the existing constitutional framework in favor of totalitarian rule.

In "The Great Unraveling," Paul Krugman quoted Kissinger's 1957 doctoral thesis which describes the essence of a "revolutionary power."

"The defenders of the status quo...begin by treating the revolutionary power as if its protestations were merely tactical; as if it really accepted the existing legitimacy but overstated its case for bargaining purposes; as if it really accepted the existing legitimacy but overstated its case for bargaining purposes; as if it were motivated by specific grievances to be assuaged by limited concessions. Those who warn against the danger in time are considered alarmists; those who counsel adaptation to circumstance are considered balanced and sane...But it is the essence of a revolutionary power that it possesses the courage of its convictions, that it is willing, indeed eager, to push its principles to their ultimate conclusion.

Krugman observed, "This passage sent chills down my spine, because it explains so well the otherwise baffling process by which the administration has been able to push radical policies through, with remarkable little scrutiny or effective opposition."

We are either a nation which abides by the rule of law or a nation with its neck in the chopping block, waiting for the axe to fall.

Everything they did was based on 9/11. The shredding of our Constitution and our basic rights. The fake wars. The deaths of over a million Iraq citizens. The deaths of thousands of our brave soldiers and the disabling of hundreds of thousands more. The illegal spying. The torture. The hundreds of billions of our tax dollars transfered to their own corporate war machine or "lost" through fraud. Their endless lies. And let's not forget that steel frame buildings can not and do not collapse at almost free fall speed into their own footprints (THE PATH OF MOST RESISTANCE, see www.journalof911studies.com for the scientific explanation), because that's impossible without a whole lot of preparation! It's time for Obama & Congress to wake up to the fact that the public knows all this and demands justice for all these CRIMES.

We can't get at Obama since he's held hostage.
We can't get at the military madmen since they're bunkered.
We can't get at Congress since they're sequestered.

We can get at The Government, which is politics, which is TV.TV is politics these days, and politics is The Government.

BOYCOTT pay TV - cable and dish.

Withhold the money (cable TV cash) that funds the fascists. Cancel your pay TV subscription TODAY!Keep $100 a month more in your pocket. Smash the State by pulling the plug on your cable box (and any others you see lying around). That's why 'the revolution will not be televised.' Hear Murdochians scream bloody murder and bankrupt corporate sponsors too as they starve for money.

ALL are damned and die lashed together, in the monolithic 'Basic Cable BUNDLE.' Because the 'good' TV stands mute when it must divulge and speak the names of the 'bad' TV, and that silence is harboring-criminals complicity, and that guilt makes NO TV 'good.' You all go down together.

When TV is destroyed then politicians have no idiot box shielded around them and must face voters face-to-face. I spit in the face of Pelosi, Reid, et al.

The beauty of BOYCOTT pay TV is that we can succeed to crush TV, and the (minority) extreme rightwing obstructing fascists CAN NOT STOP US.

Because the BOYCOTT only takes 1 million of us to shut down TV. Heck, go for 5 million. There were more Iraq-invasion protesters in the streets than that. Petitions for the rule of law collect more signatures than that. As the pay-TV BOYCOTT spreads and the TV cash flow dries up, the rightwingers refusing to quit their narcotic, soporific-TV drug addiction, have to pay more per dose, to maintain the veins of brain poison with fewer 'customers.'

About 100 million paying Homes Use Television, (and another 50 million 'businesses'). So about 5 million of us makes the operating 'profit margin.' 6 million-strong BOYCOTT is one-twelfth --- like losing an entire month's revenue in the year. And the fascists cannot make us pay for pay TV.

We can stop the government, the politics, the TV drug NOW! No need to wait for the illusory 'next election cycle.' NOW! Cancel every pay TV subscription. Don't pay.

And where do you suppose we are going to be when we are not home watching TV, hmmmm ...???
Pass it on. Around the internet.

Meremark (#12) has lovingly outlined the first step in a potentially great collective consumer strategy - get off the juice and toss your Stupid-tube! PAY TV is going the way of the Do-Do and the Dewey Decimal very soon, anyway, and if you have a computer with DSL you aren't missing a damn thing. Pretty much everything is online for free in (almost) real time.

However - I do not, and can not, endorse the entire list of happy purge-and-releases above (Stewart and Colbert are my True North for the real news and context they provide me daily on their shows, and for the sweet forehead kisses they give me nightly in my dreams). Still, I would be most interested to see which of the rest of those folks would be affected by such a boycott and how that might jump start the re-shaping of the new media as the new money...

So do it, people. Do it for the children.

Incredible article Mr. Canning, as always.
"...The loss of democracy was averted, but only because a right-wing project to remake the federal judiciary had not been completed..." That line and the paragraph that follows it hit me in the gut-suck. And thank you for the reminding insight: I had almost forgotten Bork's highly charged nomination as well-spring for this treasonous snow-roll, the defining moment of their "judicial learning curve". And after which, all we heard about from the Righty Tighties were the supposed swarms of "judicial activists legislating from the bench" appointed by subversive Democrats, that were tearing at the very fabric of this great democracy. This, as Schlozman and Co. were fixing the Inn at the DOJ by remodeling the entire department with wall-to-wall "R.T.A.'s"...
Whacked.

I can look it up, but does anyone know off-hand which of the SCOTUS bogies have Federalist ties?

The current members of the Supreme Court linked to the Federalist Society are Justices Scalia, Thomas, Alito & Chief Justice Roberts.

By the time of the John Roberts nomination, the Federalist Society tactic of avoiding exposure of a nominee’s radical views had by then become so adroit as to prompt U.C.S.D. Law Professor Peter Irons to liken questioning Roberts to trying to “nail Jell-O to a wall.” Unlike Thomas, the amiable Roberts displayed a superior intellect and a working knowledge of a wide range of constitutional subjects. His recall was superior with one glaring exception. Roberts could not recall whether he was ever a member of the Federalist Society. Yet, a 1997-98 Federalist Society leadership directory, obtained by the Institute for Democracy Studies (IDS), revealed that Roberts had been “a steering committee member of the group’s Washington chapter.” Alfred Ross of the IDS reported on Democracy Now! that the Bush White House made an “unprecedented series of calls to the national media to try to cover up [Roberts’s Federalist Society] membership.”

Yeah, and we've got limp sister Harry Reid sniveling about it. What the hell would have been wrong with the Judiciary Committee doing their job, and Reid using his backbone for something more than failing to hold up his withered and useless form?

I vote fascist regime. Wake up, people. More than 50% of Americans want universal health care. It isn't even on the table? Why? Because the lobbyists for the health care industry and Congress don't want it. A classic example of Mussolini's merging of business and government. Does it have to be made any clearer for you than that? Think "you" are in control? No, "you" are not, and "your" congressmen are not listening to "you." The _corporations_ are represented in Congress. Read your Mussolini and weep. Then get damn mad.

If you want to get philosophical (OK, half the Americans just stopped reading), I think people have a comic book/TV image of "fascist" as equaling "gas chamber death camp." Without getting too wordy, people should read up more on what "fascism" is. My political science 101 intro was the classic Ebenstein's "Four isms" and he noted that neither Hitler's "my bitch on poor, poor me" nor Mussolini's writings really provided the ideological base for fascism that Marx's writings did for communism. Fascism is more of a complex of national traits like scapegoating, warmongering, anti-intellectualism, disrespect for domestic and international rule of law and the merging of business and government. Sound familiar?

Bush and Cheney, why are these two still roaming freely, when they are expected to be convicted in the shortest impeachment and war crimes tribunals in history for their high crimes against America and Humanity?

Time to put these traitorous war criminals behind bars, where they belong, as an example to all who follow that Americans shall not tolerate crimes committed in their names!

President Obama has indeed demonstrated his inclination toward fascist rule. Our constitutional democracy is currently in critical straits. Contrary to his well-disseminated "no one is above the law" assertion, Mr. Obama is effecting above-the-law status for top Bush administration officials. Retention of such excessive and unconstitutional presidential powers will clinch the demise of this once-great nation by preserving the availability of tools which succeeding Executive Branch officials may utilize to finalize the conversion.